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ECONOMIC CRIMES IN INTERNATIONAL INVESTMENT LAW

  • Yarik Kryvoi (a1)
Abstract

The protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes. It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes. The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.

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1 A United Nations specialized agency gives a broad definition of the term ‘economic and financial crime’ as any non-violent crime that results in a financial loss, see United Nations, Office on Drugs and Crime, ‘Economic and Financial Crimes: Challenges to Sustainable Development’ The Eleventh UN Congress on Crime Prevention and Criminal Justice (Bangkok, April 2005), available at <http://www.unis.unvienna.org/pdf/05-82108_E_5_pr_SFS.pdf> 7.

2 An economic crime usually involves deviant behaviour not directed against individual interest, but against individual sectors of the economy and involves misuse of trust and power, see Schneider, HJ, ‘Economic Crime and Economic Criminal Law in the Federal Republic of Germany’ in Utsuro, Hideo (ed), Report for 1986 and Resource Series No. 31: The United Nations Asia and Far East Institute, UNAFEI (April 1987) 128–58 <https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=115314>.

3 Metal-Tech Limited v Uzbekistan, ICSID Case No ARB/10/3; World Duty Free Company Limited v Kenya, ICSID Case No ARB/00/7; Inceysa Vallisoletana SL. v Republic of El Salvador, ICSID Case No ARB/03/26; Fraport AG Frankfurt Airport Service Worldwide v Republic of the Philippines, ICSID Case No ARB/03/25; Phoenix Action Limited v Czech Republic, ICSID Case No ARB/06/5.

4 See Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA, UNCITRAL, Award (18 July 2014) para 778.

5 ibid, para 579.

6 Bosworth-Davies, R and Saltmarsh, G, ‘Definition and Classification of Economic Crime’ in Reuvid, J (ed), The Regulation and Prevention of Economic Crime Internationally (Kogan Page 1995) 550.

7 The Rompetrol Group N.V. v Romania, ICSID Case No ARB/06/3, Final Award (6 May 2013) para 46; Dawood Rawar v the Republic of Mauritius, UNCITRAL, Notice of Arbitration and Statement of Claim (9 November 2015) paras 59–60; Hydro S.r.l and others v Republic of Albania, ICSID Case No ARB/15/28, Order on Provisional Measures (3 March 2016) para 1.4.

8 Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v Plurinational State of Bolivia, ICSID Case No ARB/06/2, Decision on Provisional Measures (26 February 2010) para 122.

9 ibid paras 271–272.

10 See Pt II.

11 See Pt III.

12 See Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA, UNCITRAL, Award (18 July 2014); Señor Tza Yap Shum v The Republic of Peru, ICSID Case No ARB/07/6; Occidental Exploration and Production Company v The Republic of Ecuador, LCIA Case No UN3467.

13 See Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18, Award (26 July 2007) para 133.

14 See Anatolie Stati, Gabriel Stati, Ascom Group SA and Terra Raf Trans Traiding Ltd v Kazakhstan, SCC Case No V (116/2010).

15 British Institute of International and Comparative Law (BIICL) and Hogan Lovells, ‘Risk and Return: Foreign Direct Investment and the Rule of Law’ (3 June 2015) <https://www.biicl.org/newsitem/6112>.

16 The draft 2016 Pan-African Investment Code includes innovative language combating bribery. United Nations. Economic Commission for Africa (2016-03). Draft Pan-African investment code. UN. ECA Committee of Experts (35th: March 31–April 2, 2016: Addis Ababa, Ethiopia), <https://repository.uneca.org/handle/10855/23009>.

17 The Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997; Criminal Law Convention on Corruption 1999; United Nations Convention against Transnational Organized Crime and the Protocols Thereto 2001 (art 6 ‘Criminalization of the laundering of proceeds of crime’ and art 8 ‘Criminalization of corruption’); United Nations Convention against Corruption 2004 (UNCAC) (art 15 ‘Bribery of national public officials’, art 16 ‘Bribery of foreign public officials and officials of public international organizations’, art 21 ‘Bribery in the private sector’, art 14 ‘Measures to prevent money-laundering’ and art 23 ‘Laundering of proceeds of crime’).

18 See for instance the 2016 Slovakia–Iran BIT whose preamble states that the parties are determined ‘to prevent and combat corruption, including bribery, in international cooperation and investment and to promote corporate social accountability’. Art 14.2 further provides that the Tribunal shall dismiss a claim if the investor has committed fraud, tax evasion, corruption and bribery, or if the investment has been made through fraudulent misrepresentation, concealment, corruption, or conduct amounting to an abuse of process. In a similar vein, the 2016 Morocco–Nigeria BIT (art 17) and the 2016 Brazil–Peru Economic and Trade Expansion Agreement (arts 2.14 and 3.11) require each Party to ensure that measures are taken to combat corruption and entitle States to deny substantive protection to investments established or operating by way of illicit means, corruption, or other form of illegality. The 2015 Burkina Faso–Canada BIT expressly recognizes in its preamble ‘the undertakings in the United Nations Convention against Corruption’ and encourages corporate social responsibility through inter alia anti-corruption principles (art 16); so does the 2013 Colombia–Panama FTA (art 14.15).

19 Hesham T. M. Al Warraq v Republic of Indonesia, UNCITRAL, Final Award (15 December 2014) para 607.

20 Hesham T. M. Al Warraq v Republic of Indonesia, UNCITRAL, Award on Respondent's Preliminary Objections to Jurisdiction and Admissibility of the Claims 2 (1 June 2012) para 99.

21 Pan American Energy LLC and BP Argentina Exploration Company v The Argentine Republic, ICSID Case No ARB/03/13, Decision on Preliminary Objections (27 July 2006) para 54. A similar approach was also followed in Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v Islamic Republic of Pakistan, ICSID Case No ARB/03/29, para 59.

22 Methanex Corporation v United States of America, UNCITRAL, Final Award on Jurisdiction and Merits (3 August 2005) para 129.

23 See art 34 of ICSID Arbitration Rules (‘The Tribunal shall be the judge of the admissibility of any evidence and of its probative value’).

24 Responsibility of States for Internationally Wrongful Acts 2001, art 44 (Arbitral tribunals deciding on their own jurisdiction have generally allowed investors to bypass local remedies even under treaties lacking an explicit or implicit waiver of the exhaustion rule, although this trend seems to be changing with States reintroducing a mandatory requirement to pursue or exhaust local remedies), <http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf>. See IISD Best Practices Series: Exhaustion of Local Remedies in International Investment Law (The International Institute for Sustainable Development, 2017), <https://www.iisd.org/sites/default/files/publications/best-practices-exhaustion-local-remedies-law-investment-en.pdf>.

25 See Brownlie, I, Principles of Public International Law (7th edn, Oxford University Press 2008) 475; Douglas, Z, The International Law of Investment Claims (Cambridge University Press 2009) para 293.

26 M Waibel, ‘Investment Arbitration: Jurisdiction and Admissibility’ in Cambridge Legal Studies Research Paper Series, Paper No 9/2014 (February 2014).

27 Such requirements may include notification of the host State of the dispute, compulsory negotiations before the commencement of the arbitration proceedings (‘cooling-off’ period) and exhaustion of domestic legal remedies.

28 See eg Inceysa Vallisoletana, S.L. v Republic of El Salvador, ICSID Case No ARB/03/26; Plama Consortium Ltd. v Republic of Bulgaria, ICSID Case No ARB/03/24.

29 Inceysa Vallisol e tana SL (n 28) para 202.

30 ibid paras 103, 109, 236.

31 ibid paras 190–207, 332.

32 See Yukos Universal Limited (Isle of Man) v The Russian Federation, UNCITRAL, PCA, Award (18 July 2014) paras 1354–1355.

33 ibid.

34 Z Douglas, ‘The Plea of Illegality in Investment Treaty Arbitration’ (Winter 2014) 29(1) ICSID Review 155; CA Miles, ‘Corruption, Jurisdiction and Admissibility in International Investment Claims’ (2012) 3(2) JIDS 329.

35 Plama Consortium Limited v Republic of Bulgaria, ICSID Case No ARB/03/24, Award (27 August 2008).

36 Europe Cement Investment & Trade S.A. v Republic of Turkey, ICSID Case No ARB (AF)/07/2, Award (13 August 2009) (concluding that refusal to produce the originals of the share agreements meant that the claim that the investor had shares in relevant business enterprises was fraudulent.)

37 Churchill Mining PLC and Planet Mining Pty Ltd v Republic of Indonesia, ICSID Case No ARB/12/14 and 12/40, Award (6 December 2016).

38 ibid paras 530–532.

39 Plama Consortium Limited v Republic of Bulgaria, ICSID Case No ARB/03/24, Award (27 August 2008) para 140.

40 World Duty Free Company Limited v The Republic of Kenya, ICSID Case No ARB/00/7, Award (October 2006) para 157.

41 Société d'Investigation de Recherche et d'Exploitation Minière v Burkina Faso, ICSID Case No ARB/97/1, Award (19 January 2000) paras 5.26–5.33, 5.41.

42 See Yukos Universal Limited (Isle of Man) v The Russian Federation, UNCITRAL, PCA, Award (18 July 2014).

43 Agreement on Promotion, Protection and Guarantee of Investments among Member States of the Organisation of the Islamic Conference, 1981.

44 Hesham T. M. Al Warraq (n 19) para 683.

45 ibid.

46 ibid paras 645–647.

47 See eg UNCITRAL Model Law on International Commercial Arbitration 1985, art 16(1); UNCITRAL Arbitration Rules (1976), art 21(2); ICSID Additional Facility Arbitration Rules, art 45(1); Schreuer, CH, The ICSID Convention: A Commentary (Cambridge University Press 2009) para 622; Plama v Bulgaria, para 212 (pointing to the separability concept to explain the non-application of MFN clauses to dispute settlement provisions of a treaty).

48 One of the notable exceptions to this rule was Judge G Lagergren's 1963 Award, which has been criticized by many commentators for appearing to dispose of the case on jurisdictional grounds despite the separability principle. See JG Wetter, ‘Issues of Corruption before International Arbitral Tribunals: The Authentic Text and True Meaning of Judge Gunnar Lagergren's 1963 Award’ (1994); ICC Award No 1110.

49 See for instance UNIDROIT Principles art 3.2.5 on fraud.

50 S Schill, ‘Deference in Investment Treaty Arbitration: Re-conceptualizing the Standard of Review through Comparative Public Law’ SIEL Working Paper No 33/2012, 9.

51 Vadi, V and Gruszczynski, LStandards of Review in International Investment Law and Arbitration: Multilevel Governance and the Commonwealth’ (2013) 16(3) JIEL 613.

52 See, for instance, ICC Rules of Arbitration (1 March 2017) art 42 (the arbitral tribunal shall act in the spirit of the Rules and shall make every effort to make sure that the award is enforceable at law).

53 See United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) art V(2)b.

54 For example, under the UK Proceeds of Crime Act ‘criminal conduct’ also includes conduct aiding and abetting a criminal offence in the United Kingdom and outside the United Kingdom, if that would have constituted an offence in the United Kingdom. Proceeds of Crime Act 2002, Sections 327, 328 and 329 <https://www.legislation.gov.uk/ukpga/2002/29/contents>.

55 Art 52 of the ICSID Convention.

56 See New York Convention, art V(1)(c); 1985 UNCITRAL Model Law on International Commercial Arbitration, art 34(2) (iii); United States Federal Arbitration Act, section 10(a)(4); Swiss Federal Statute on Private International Law, art 190(1)(c).

57 The investor's key witness admitted both making the payment and considering it a bribe. See at 38 which refers to para 19 of Mr Nasir Ibrahim Ali's witness statement. He states, inter alia, that he ‘felt uncomfortable with the idea of handing over this ‘‘personal donation’’ which appeared to [him] to be a bribe’. The tribunal further stated that its conclusion as to the existence of bribe is grounded on the ‘circumstances’ as described by Mr Ali himself (see para 136).

58 Metal-Tech Ltd. v The Republic of Uzbekistan, ICSID Case No ARB/10/3, Award (4 October 2013).

59 The tribunal stated that the relevant facts ‘were not alleged by the Respondent; they emerged during the Hearing in the course of the examination of the Claimant`s principal witness’; see Metal-Tech, para 70. It went on to mention that ‘the evidence of payments came from the Claimant and the Tribunal itself sought further evidence of the nature and purpose of such payments’; see para 243.

60 The tribunal did so by invoking art 43 of the ICSID Convention, which provides that a tribunal may, if it deems it necessary at any stage of the proceedings, call upon the parties to produce documents or other evidence.

61 For an analysis of the case and the evidence see also Rose, C, ‘Circumstantial Evidence, Adverse Influences, and Findings of Corruption: Metal-Tech Ltd. v The Republic of Uzbekistan’ (2014) 15 The Journal of World Investment & Trade 747.

62 According to the art V(1)(c) of the New York Convention, recognition and enforcement of the award may be refused if the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration. Awards rendered under the ICSID Convention can be annulled if the Tribunal has manifestly exceeded its powers (art 52 of the ICSID Convention).

63 Lao Holdings N.V. v Lao People's Democratic Republic, ICSID Case No ARB (AF)/12/6, Ruling on Motion to Amend the Provisional Measures Order (30 May 2014) para 21; Abaclat v The Argentine Republic, ICSID Case No ARB/07/5, Procedural Order No 13 (27 September 2012) paras 39 and 45 (‘Arbitral Tribunals can in principle not prohibit a Party from conducting criminal court proceedings before competent state authorities’).

64 Técnicas Medioambientales Tecmed, S.A. v The United Mexican States, ICSID Case No ARB (AF)/00/2 Award (29 May 2003) para 135.

65 Amco Asia Corporation and others v Republic of Indonesia, Decision on Jurisdiction in Resubmitted Proceeding, ICSID Case No ARB/81/1 (10 May 1988) para 125.

66 ibid paras 126–127.

67 Transparency International, Official Website <https://www.transparency.org/what-is-corruption/#define>.

68 ibid.

69 ibid.

70 ibid.

71 World Duty Free Co Ltd v Republic of Kenya, ICSID Case No ARB/00/7, Award (4 October 2006) (the tribunal held that a payment of $2 million made by the investor to the then-President of Kenya was a bribe and thus declared the investment contract void); Metal Tech Ltd v The Republic of Uzbekistan, ICSID Case No ARB/10/3, Award (4 October 2013) (the tribunal found that payments of approximately $4 million made by Metal-Tech to several individuals, including an Uzbek government official and the brother of the then-Prime Minister of Uzbekistan, while presented as remuneration for various consultancy services, in fact constituted corruption and were illegal under Uzbek law); Methanex Corporation v United States of America, UNCITRAL, Award (3 August 2005) (the allegations concerned political campaign contributions made by an investor's competitor to the former Governor of the state of California, allegedly to secure an executive order favourable to the competitor. The Tribunal in that case was willing to agree that corruption could occur even when the payments are made through facially legal campaign contributions, provided that there was a true quid pro quo wherein campaign contributions were given in exchange for favourable government action. Eventually, the Tribunal found such allegations unproven).

72 The Rompetrol Group N.V. v Romania, ICSID Case No ARB/06/3, Award (6 May 2013) para 238; see also Lemur v Ukraine, ICSID Case No ARB/06/18, Decision on Jurisdiction and Liability (14 January 2010) para 283 (concluding that the arbitrators were not superior regulators and they did not substitute their judgment for that of national bodies applying national laws); SD Myers Inc v Canada, UNCITRAL/NAFTA, Partial Award (13 November 2000) para 261 (confirming that the tribunal did not have ‘an open-ended mandate to second-guess government decision-making’).

73 See eg Tokios Tokeles v Ukraine, ICSID Case No ARB/01/18; Spyridon Roussalis v Romania, ICSID Case No ARB/06/1; Jan Oostergetel and Theodora Laurentius v The Slovak Republic; Micula v Romania, ICSID Case No ARB/05/20; Rompetrol v Romania, ICSID Case No ARB/06/3.

74 Tokios Tokelés v Ukraine, ICSID Case No ARB/01/18, Award (26 July 2007) para 133.

75 ibid.

76 Vladislav Kim and others v Republic of Uzbekistan, ICSID Case No ARB/13/6, Decision on Jurisdiction (8 March 2017) para 408.

77 Vadi, V and Gruszczynski, L, ‘Standards of Review in International Investment Law and Arbitration: Multilevel Governance and the Commonwealth’ (2013) 16(3) JIEL 626.

78 ibid para 238, RosinvestCo UK Ltd. v The Russian Federation, SCC Case No V079/2005, Final Award (12 September 2010) para 599 (an assessment of whether Respondent breached the IPPA can only be effectively conducted if the conduct as a whole is reviewed, rather than isolated measures); Spyridon Roussalis v Romania, paras 602–610 (the tribunal examined whether the length of criminal proceedings was reasonable considering the complexity and significance of the case as well as severity of the measures taken against the investor).

79 The Rompetrol Group N.V. v Romania, para 271.

80 MA Carreteiro, ‘Burden and Standard of Proof in International Arbitration: Proposed Guidelines for Promoting Predictability’ (2016) 49 Revista Brasileira de Arbitragem Ano XIII 84–5.

81 Yukos Universal Limited (Isle of Man) v The Russian Federation, UNCITRAL, PCA, Interim Award on Jurisdiction and Admissibility (30 November 2009) para 509.

82 Valeri Belokon v Kyrgyzstan, PCA, UNCITRAL Award (24 October 2014) para 158.

83 See Vogenauer, S and Kleinheisterkamp, J, Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (Oxford University Press 2009) 884.

84 See The UK Criminal Justice and Public Order Act 1994.

85 See Asian Agricultural Products Ltd v Republic of Sri Lanka, ICSID Case No ARB/87/3, Award (27 June 1990) para 56; Tradex Hellas v Republic of Albania, ICSID Case No ARB/94/2, Award (29 April 1999) paras 73–75; Valeri Belokon v Kyrgyzstan, PCA, UNCITRAL, Award (24 October 2014) para 161 (in this case, the tribunal empathized that it ultimately remained for the host State to prove that money laundering was actually carried out and that the measures taken were in accordance with its international obligations).

86 The burden of proof shifts when the tribunal decides that the respondent should disprove the claimant's assertions which may be warranted by the existence of ‘special circumstances or good reasons’ (Waguih Elie George Siag & Clorinda Vecchi v Arab Republic of Egypt (Siag & Anor v Egypt), ICSID Case No ARB/05/15, Award (11 April 2007) para 318).

87 For instance, in the Yukos awards, the tribunals initially found that the investors bore the burden of proving their claim that Russia had unlawfully expropriated their investment, but then seemed to discard the burden of proof resting on the investors regarding the unlawfulness of the alleged expropriations (Hulley Enterprises Limited (Cyprus) v The Russian Federation, PCA Case No AA226, Final Award (28 July 2014); Yukos Universal Limited (Isle of Man) v The Russian Federation, PCA Case No AA227, Final Award (28 July 2014); Veteran Petroleum Limited (Cyprus) v The Russian Federation, PCA Case No AA228, Final Award (18 July 2014).

88 Getma International and others v Republic of Guinea, ICSID Case No ARB/11/29, para 163.

89 Metal-Tech v Uzbekistan, para 243.

90 EDF (Services) Limited v Romania, para 221.

91 Getma International and others v Republic of Guinea, ICSID Case No ARB/11/29.

92 See eg Kazakhstan–Uzbekistan BIT (1997) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/5009> art 11; India–Nepal BIT (2011) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1583> 12,; Australia–India BIT (1999) <http://investmentpolicyhub.unctad.org/Download/TreatyFile/154> 14.

93 See eg art 32 of the ILC Articles on State Responsibility (‘The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under this part.’); art 27 of the 1969 Vienna Convention on International Law of Treaties (‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’).

94 Teinver SA - Transportes de Cercanias SA - Autobuses Urbanos del Sur SA v Argentine Republic, ICSID Case No ARB/09/1, Award (21 July 2017) para 365.

95 B Legum and G Vannieuwenhuyse, ‘Document Disclosure in Investment Arbitration’ in Rovine, AW, Contemporary Issues in International Arbitration and Mediation: The Fordham Papers (Nijhoff Publishers 2013).

96 See eg Biwater Gauff (Tanzania) Ltd. v United Republic of Tanzania, ICSID Case No ARB/05/22, Procedural Order No 2 (23 May 2006) paras 8–9.

97 A Sheppard, ‘The Approach of Investment Treaty Tribunals to Evidentiary Privileges’ (2016) 31(3) ICSID Review 670.

98 A Parra, The History of the ICSID Convention, Vol II, Pt I (ICSID 1968) 216, ‘Unless the parties specifically preclude it from doing so, the Tribunal would have the power to prescribe provisional measures designed to preserve the status quo between the parties pending its final decision on the merits.’

99 ICSID Convention, art 47, ‘Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.’ ICSID Arbitration Rules art 39(1) supplements art 47 regarding the procedure and requires that ‘[t]he request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures’.

100 Caratube International Oil Company LLP v The Republic of Kazakhstan, ICSID Case No ARB/08/12, Decision Regarding Claimant's Application for Provisional Measures (31 July 2009) paras 134–136.

101 ICSID Convention, art 26 (‘Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.’).

102 Churchill Mining PLC and Planet Mining Pty Ltd. v the Republic of Indonesia, ICSID Case No ARB/12/14, Procedural Order No 9 (8 July 2014) para 85; Quiborax v Bolivia, ICSID Case No ARB/06/2, Decision on Provisional Measures (6 February 2010) para 128.

103 Churchill Mining PLC and Planet Mining Pty Ltd. v the Republic of Indonesia, ICSID Case No ARB/12/14, Procedural Order No 9 (8 July 2014) para 86.

104 SGS Société Générale de Surveillance S.A. v Islamic Republic of Pakistan, ICSID Case No ARB/01/13, Procedural Order No 2 (16 October 2002) para 36; Gustav F W Hamester GmbH & Co KG v Republic of Ghana, ICSID Case No ARB/07/24, Award (18 June 2010) para 297; Churchill Mining PLC and Planet Mining Pty Ltd. v the Republic of Indonesia, ICSID Case No ARB/12/14, Procedural Order No 14 (22 December 2014) para 72; Teinver S.A. et al v the Argentine Republic, ICSID Case No ARB/09/1, Decision on Provisional Measures (8 April 2016) para 190; Italba Corporation v Oriental Republic of Uruguay, ICSID Case No ARB/16/9, Decision on Claimant's Application for Provisional Measures and Temporary Relief (15 February 2017) paras 115–116.

105 Tokios Tokeles v Ukraine, ICSID Case No ARB/02/18 (29 April 2004) para 8; City Oriente Limited v The Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador), ICSID Case No ARB/06/21, Decision on Provisional Measures (19 November 2007) para 54; Lao Holdings, Holdings N.V. v the Law People's Democratic Republic, ICSID Case No ARB(AF)/12/6, Ruling on Motion to Amend the Provisional Measures Order (30 May 2014) para 9; Churchill Mining PLC and Planet Mining Pty Ltd v Republic of Indonesia, ICSID Case No ARB/12/14 and 12/40, Procedural Order No 9, Provisional Measures (8 July 2014) para 69.

106 Amco Asia Corporation v Indonesia, Provisional Measures (1983) 1 ICSID Reports 410, 412; City Oriente v Ecuador, ICSID Case No ARB/06/21, Provisional Measures (19 November 2007) 54–5; Chevron Corporation and Texaco Petroleum Corporation v Ecuador, PCA Case No 2009, First Interim Award on Interim Measures (25 January 2012) 23; G Born, International Commercial Arbitration (Kluwer 2014) Ch 17; Miles, CA, Provisional Measures before International Courts and Tribunals (Cambridge University Press 2017) Ch 4 and 6.

107 Nova Group Investments, B.V. v Romania, ICSID Case No ARB/16/19, Procedural Order No 7 (29 March 2017) para 227.

108 Hydro S.r.l. and others v Republic of Albania, ICSID Case No ARB/15/28, Order on Provisional Measures (3 March 2016) paras 3.14 and 3.16. The tribunal granted the measures sought reasoning that the State's threat to incarcerate the claimants would affect their ability to participate in the arbitration.

109 See E Wong, ‘Procedural Issues Resulting from a Fraud Claim in International Commercial Arbitration: An English Law Perspective’ Kluwer Arbitration Blog (24 January 2014) <http://kluwerarbitrationblog.com/2014/01/24/procedural-issues-resulting-from-a-fraud-claim-in-international-commercial-arbitration-an-english-law-perspective/>; Ly, F De, ‘ILA Final Report on Lis Pendens and Arbitration’ (2009) 25 ArbIntl para 1.18.

110 Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v Plurinational State of Bolivia, ICSID Case No ARB/06/2, Decision on Provisional Measures (26 February 2010) 46; Lao Holdings v The Lao People's Democratic Republic, ICSID Case No ARB(AF)/12/6, Ruling on Motion to Amend the Provisional Measures Order (30 May 2014).

111 Hydro S.r.l and others v Republic of Albania, ICSID Case No ARB/15/28, Order on Provisional Measures (3 March 2016) para 3.4.1.; Lao Holdings N.V. v the Law People's Democratic Republic, ICSID Case No ARB(AF)/12/6, Ruling on Motion to Amend the Provisional Measures Order (30 May 2014) paras 73–76.

112 Italba Corporation v Oriental Republic of Uruguay, ICSID Case No ARB/16/9, Decision on Claimant's Application for Provisional Measures and Temporary Relief (15 February 2017). Uruguay had started investigations against two of the claimant's witnesses which the claimant sought to suspend. Uruguay ensured that it intended to honour its commitment to respect the claimant's rights in this arbitration. The tribunal was convinced by these assurances, in addition to finding that there was no risk of the dispute being aggravated by the investigations, and declined to stay the latter.

113 Nova Group Investments, B.V. v Romania, ICSID Case No ARB/16/19, Procedural Order No 7 (29 March 2017).

114 ibid paras 309, 339, 353–354, 357–358.

115 ibid.

116 See eg Churchill Mining PLC and Planet Mining Pty Ltd. v the Republic of Indonesia, ICSID Case No ARB/12/14, Procedural Order No 14 (22 December 2014). Caratube International Oil Company LLP v The Republic of Kazakhstan, ICSID Case No ARB/08/12, Decision Regarding Claimant's Application for Provisional Measures (31 July 2009).

117 Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v Plurinational State of Bolivia, ICSID Case No ARB/06/2, Decision on Provisional Measures (26 February 2010).

118 ibid para 122.

119 ibid para 123.

120 ibid para 148.

121 ibid para 306.

122 CA Miles, Provisional Measures before International Courts and Tribunals (Cambridge University Press 2017) 113, 136; See also, N Petersen, ‘The Role of Consent and Uncertainty in the Formation of Customary International Law’ (2011) (Preprints of the Max Planck Institute for Research on Collective Goods) 1 <http://www.coll.mpg.de/pdf_dat/2011_04online.pdf>.

123 Dispute Settlement, ICSID, 2.9 Binding Force and Enforcement, UNCTAD, 11: ‘The obligation to recognize and enforce only applies to final awards. Decisions preliminary to awards such as decisions upholding jurisdiction under Art. 41, decisions recommending provisional measures under Art. 47 and procedural orders under Arts. 43 and 44 are not awards and are therefore not subject to recognition and enforcement. But if these preliminary decisions are later incorporated into an award, they become part of the award and are subject to recognition and enforcement.’; art I of the 1958 New York Convention does not define ‘arbitral awards’ in terms of content.

124 See Ceskoslovenska Obchodnı Banka, AS v Slovak Republic, ICSID Case No ARB/97/4, Procedural Order No 4 (11 January 1999) and Procedural Order No 5 (1 March 2000), as summarized in 24 May 1999 Decision). The Tribunal recommended the suspension of certain bankruptcy proceedings, but the national courts of the Respondent did not accept that they were bound by this recommendation.

125 Compare English decisions Bechetti, relating to the Hydro v Albania case (Hydro Srl v Republic of Albania, ICSID Case No ARB/15/28), where the Judge upheld the order on provisional measures (Government of Albania - Judicial Authority v Francesco Becchetti and Mauro De Renzis, UK Magistrates Court (20 May 2016) at <https://www.italaw.com/sites/default/files/case-documents/italaw7644.pdf>), and Adamescu, relating to the Nova v Romania case, where the Judge refused to grant a stay of the extradition proceedings, a stay ordered by the arbitral tribunal (also in the Westminster Magistrates Court and unavailable to the public). E Gonin, ‘How Effective Are ICSID Provisional Measures at Suspending Criminal Proceedings before Domestic Courts: The English Example?’ Kluwer Arbitration Blog (30 September 2017) <http://arbitrationblog.kluwerarbitration.com/2017/09/30/effective-icsid-provisional-measures-suspending-criminal-proceedings-domestic-courts-english-example>.

126 Emilio Agustin Maffezini v Kingdom of Spain, ICSID Case No ARB/97/7, Procedural Order No 2 (28 October 1999) para 9; Maffezini; Victor Pey Casado and President Allende Foundation v Republic of Chile, ICSID Case No ARB/98/2, Decision on Provisional Measures (25 September 2001) para 2; Tokios Tokele s v Ukraine, ICSID Case No ARB/02/18, Procedural Order No 1 (1 July 2003) paras 2 and 4; Helnan International Hotels A/S v Arab Republic of Egypt, ICSID Case No ARB/05/19, Claimant's Request for Provisional Measures (17 May 2006) para 32; Perenco Ecuador Limited v Republic of Ecuador and Empresa Estatal Petróleos del Ecuador, ICSID Case No ARB/08/6, Decision on Provisional Measures (8 May 2009) paras 66–77; Tethyan Copper Company Pty Limited v Islamic Republic of Pakistan, ICSID Case No ARB/12/1, Decision on Claimant's Request for Provisional Measures (13 December 2012) para 120; City Oriente Limited v Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador), ICSID Case No ARB/06/21, Decision on Provisional Measures (9 November 2007) para 92.

127 Schreuer, C et al. , The ICSID Convention. A Commentary (Cambridge University Press 2009) 764.

128 Parra (n 98) 515, 518, 655, 813.

129 ibid 516.

130 ibid 815 ‘By a large majority the Committee also accepted to use the word “recommend” as opposed to “prescribe” or “indicate.”’

131 ibid.

132 ibid.

133 In MINE v Guinea, the Tribunal warned the claimant, who was the non-compliant party, that it would take the non-compliance into account in the final award: ‘Pursuant to Article 47 and the applicable ICSID regulations and rules the Tribunal will take into account in its award the effects of any non-compliance of MINE with its recommendations.’; MINE v Guinea, 4 ICSID Report 35, Order for Interim Measures (4 December 1985) para 77. In AGIP v Congo, 1 ICSID Report 306, Award (30 November 1979) para 329, the Congo failed to preserve documents as ordered. The tribunal took note of the non-compliance in the reparations owed to AGIP as part of the final award by ordering the Congo to pay all the tribunal's costs.

134 In City Oriente v Ecuador, ICSID Case No ARB/06/21, Decision on Provisional Measures (19 November 2007) para 53, the tribunal held that ‘a failure to comply with orders given to Respondents by the Tribunal in accordance with Article 47 of the Convention will entail a violation of Article 26 thereof, and engage Respondents’ liability’.

135 Quiborax v Bolivia, ICSID Case No ARB/06/2, Award (16 September 2015) para 583.

136 Quiborax v Bolivia, ICSID Case No ARB/06/2, Award (16 September 2015) para 583, fn 743.

137 See, for example the same text in art 8 of the 2015 Japan–Oman BIT, <http://investmentpolicyhub.unctad.org/Download/TreatyFile/3481>; art 9 of the 2008 Japan–Uzbekistan BIT, <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1737>; art 9 of the 2010 Iraq–Japan BIT <http://investmentpolicyhub.unctad.org/Download/TreatyFile/1663>.

138 See eg Canada–Mali BIT (2014) art 15(3) (‘Each Party should encourage enterprises operating within its territory or subject to its jurisdiction to incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Parties. These principles address issues such as

labour, the environment, human rights, community relations, and anti-corruption’), similar provisions can be found in other BITs and agreements with investment provisions recently concluded by Canada, such as art 8.16 of the 2014 Canada–Korea Free Trade Agreement, art 16 of the 2014 Canada–Serbia BIT and art 16 of the 2014 Canada–Senegal BIT.

139 See art 9 of the 2010 Austria–Kazakhstan BIT; art 9 of the 2013 Austria–Nigeria BIT; art 12 of the 2013 Japan–Saudi Arabia BIT; art 8 of the 2008 Belarus–Mexico BIT.

140 See 2013 Austria–Nigeria BIT; 2010 Austria–Tajikistan BIT; 2010 Austria–Kazakhstan BIT. See also references to the UN Convention against Corruption in the preamble of the 2015 Burkina Faso–Canada BIT and art 17 of the 2013 Guatemala–Trinidad and Tobago BIT.

141 See, for instance, art 7 of the 2006 Southern African Development Community Protocol on Finance and Investment which contains an investor–State dispute resolution clause that imposes an obligation on States to ‘become members of and liaise with the International Organization of Securities Commissions and International Association of Insurance Supervisors and International Association of Insurance Supervisors’. See <www.sadc.int/files/4213/5332/6872/Protocol_on_Finance__Investment2006.pdf>; Valeri Belokon v Kyrgyz Republic, PCA, UNCITRAL, Award (24 October 2014) para 153, the tribunal used the definition of money laundering proposed by Financial Task Force on Money Laundering (FAFT), ‘processing of these criminal proceeds to disguise their illegal origin, [which] enables the criminal to enjoy these profits without jeopardizing their source’ citing Financial Action Taskforce, ‘What is Money Laundering’ <http://www.fatf-gafi.org/faq/moneylaundering/>.

142 United Nations Convention Against Corruption (UNCAC), 9 December 2003, in Report of the Ad Hoc Committee for the Negotiation of a Convention Against Corruption on the work of its first to seventh sessions, GA Res 58/4, UN GAOR, 58th Sess, 50th and 51st plenary mtgs, Annex, Agenda Item 108, UN Doc A/58/422 (2003). See ratification status at <https://www.unodc.org/unodc/en/corruption/ratification-status.html>). States are parties to the UNCAC, which, inter alia, imposes an obligation on States which are expected to encourage their nationals and residents to report the commission of acts of corruption to the law enforcement authorities, and to consider establishing measures and systems to facilitate the reporting by officials of acts of corruption to the appropriate authorities when such acts come to their notice in the performance of their functions; see UNCAC, arts 8(4) and 39(2).

143 See Sistem Mühendislik In aat Sanayi ve Ticaret A. v Kyrgyz Republic, ICSID Case No ARB(AF)/06/1, Award (9 September 2009) para 42 (the tribunal found reasonable and useful definition of bribery in the OECD Convention); Metal-Tech Limited v Uzbekistan, ICSID Case No ARB/10/3, Award (4 October 2013) para 291, (the tribunal mentioned the OECD convention and several other anti-corruption conventions to emphasize the international consensus on combating corruption).

144 Vladislav Kim and others v Republic of Uzbekistan, ICSID Case No ARB/13/6, Decision on Jurisdiction (8 March 2017) paras 594 and 598–596 (highlighting that international public policy against corruption focuses on corruption of government officials rather than private individuals).

145 ibid paras 197, 208, 212, 218–224.

146 Hesham T. M. Al Warraq (n 19) para 607.

147 Financial Action Task Force, FATF 40 Recommendations, October 2003. <http://www.fatf-gafi.org/media/fatf/documents/FATF%20Standards%20-%2040%20Recommendations%20rc.pdf>.

148 Financial Action Task Force, Procedures for the FATF Fourth Round of AML/CFT Mutual Evaluations (Paris February 2017) <www.fatf-gafi.org/publications/mutualevaluations/documents/4th-round-procedures.html>.

149 See European Parliament and Council, Directive 2001/97/EC (4 December 2001) (amending Council Directive 91/308/EEC of 10 June 1991) on Prevention of the Use of the Financial System for the Purpose of Money Laundering, <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32001L0097>; UN Convention against Transnational Organized Crime, 2001, <https://www.unodc.org/documents/middleeastandnorthafrica/organised-crime/UNITED_NATIONS_CONVENTION_AGAINST_TRANSNATIONAL_ORGANIZED_CRIME_AND_THE_ PROTOCOLS_ THERETO.pdf>.

150 United Nations Convention against Transnational Organized Crime, adopted 8 January 2001, UNGA Res (A/55/383), <http://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf>.

151 Warsaw Convention: Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (16 May 2005) <http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/198>; Strasbourg Convention: Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (8 November 1990) <http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/141>; Directive 2005/60/EC: European Parliament and Council Directive on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing.

152 Organisation for Economic Cooperation and Development, Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (2017) <http://www.oecd.org/tax/treaties/multilateral-convention-to-implement-tax-treaty-related-measures-to-prevent-beps.htm>.

153 Basel Committee on Banking Supervision, ‘The Core Principles for Effective Banking Supervision’ (2012) <http://www.bis.org/publ/bcbs230.htm> (supplemented with detailed methodology for compliance assessment).

154 International Organisation of Securities Commissions, ‘Objectives and Principles of Securities Regulation’ (2003) <https://www.iosco.org/library/pubdocs/pdf/IOSCOPD154.pdf> with detailed compliance assessment methodology <https://www.iosco.org/library/pubdocs/pdf/IOSCOPD155.pdf>.

155 Insurance Core Principles (ICP) (2011) adopted by the International Association of Insurance Supervisors of the International Association of Insurance Supervisors (IAIS) <https://www.iaisweb.org/page/supervisory-material/insurance-core-principles//file/58067/insurance-core-principles-updated-november-2015>. IAIS is a voluntary membership organization of insurance supervisors and regulators from more than 200 jurisdictions in nearly 140 countries.

156 ibid principles 21 and 22.

157 Kryvoi, Y, ‘Counterclaims in Investor-State Disputes’ (Spring 2012) 21(2) Minnesota Journal of International Law 216.

158 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. Report of the International Law Commission on the work of its fifty-third session (2001) <http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf> art 39.

159 ibid art 2.

160 ibid.

161 ibid Ch II.

162 ibid art 7.

163 Word Duty Free v Kenya (n 40).

164 See AB Spalding, ‘Deconstructing Duty-Free: Investor-State Arbitration as Private Anti-Bribery Enforcement’ (September 2016) University of Richmond School of Law, <https://ssrn.com/abstract=2829351>.

165 World Duty Free v Kenya (n 40) para 169.

166 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. Report of the International Law Commission on the work of its fifty-third session (2001) art 3, <http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf> (citing 47 Caire, UNRIAA, vol V (Sales No 1952.V.3) 516 at 531 (1929) and Maal, UNRIAA, vol X (Sales No 60.V.4) 732–3 (1903)); La Masica, ibid vol XI (Sales No 61.V.4) 560 (1916); Velásquez Rodríguez v Honduras Case, Inter-American Court of Human Rights, Series C, No 4, para 170 (1988).

167 See Fraport AG Frankfurt Airport Services Worldwide v The Republic of the Philippines, ICSID Case No ARB/03/25 (‘Fraport I’); Fraport AG Frankfurt Airport Services Worldwide v Republic of the Philippines, ICSID Case No ARB/11/12 (‘Fraport II’); Metal-Tech Limited v Uzbekistan, ICSID Case No ARB/10/3; World Duty Free Company Limited v Kenya, ICSID Case No ARB/00/7.

168 Wena Hotels Ltd. v Arab Republic of Egypt, ICSID Case No ARB/98/4, Award (8 December. 2000) para 116.

169 EDF (Servs.) Ltd. v Republic of Romania, ICSID Case No ARB/05/13, Award (8 October 2009) para 221.

170 Metal-Tech Ltd. v The Republic of Uzbekistan, ICSID Case No ARB/10/3, Award (4 October 2013) para 422. (‘The law is clear – and rightly so – that in such a situation [of an investment tainted by corruption] the investor is deprived of protection and, consequently, the host State avoids any potential liability. That does not mean, however, that the State has not participated in creating the situation that leads to the dismissal of the claims. Because of this participation, which is implicit in the very nature of corruption, it appears fair that the Parties share in the costs’]).

171 E Peterson and V Djanic, ‘In an innovative award, arbitrators pressure Uzbekistan – under threat of adverse cost order – to donate to UN Anti-Corruption Initiative; also Propose Future Treaty-Drafting Changes that would Penalize States for Corruption’ IAReporter <https://www.iareporter.com/articles/in-an-innovative-award-arbitrators-pressure-uzbekistan-under-threat-of-adverse-cost-order-to-donate-to-un-anti-corruption-initiative-also-propose-future-treaty-drafting-changes-that-woul/> .

172 Inmaris Perestroika Sailing Maritime Services GmbH and Others v Ukraine, ICSID Case No ARB/08/8, Decision on Jurisdiction (8 March 2010) para 140.

173 Fraport I (n 167) para 347.

174 Inmaris Perestroika Sailing Maritime Services GmbH and Others v Ukraine, ICSID Case No ARB/08/8, Decision on Jurisdiction (8 March 2010) para 140.

175 See art 39 of the ILC Articles on State Responsibility (n 24).

176 See ILC Articles (n 24).

177 Alex Genin, Eastern Credit Limited, Inc. and A.S. Baltoil v The Republic of Estonia, ICSID Case No ARB/99/2, Award (25 June 2001).

178 Eudoro Armando Olguín v Republic of Paraguay, ICSID Case No ARB/98/5, Award (26 July 2001) para 65(b); Parkerings-Compagniet AS v Republic of Lithuania, ICSID Case No ARB/05/8, Award (11 September 2007) para 52 (the tribunal dismissed the claim because by choosing to invest in a transition economy, the investor took the business risk that laws may change with a detrimental effect to the investment); Waste Management, Inc. v United Mexican States (‘Number 2’), ICSID Case No ARB (AF)/00/3, Award (30 April 2004) Pt IV (the claims for the loss of the investment were attributed to the investor's bad business planning and realization of commercial risks).

179 ibid.

180 MTD Equity Sdn. Bhd. and MTD Chile S.A. v Republic of Chile, ICSID Case No ARB/01/7, Award (25 May 2004).

181 Azurix Corp. v The Argentine Republic, ICSID Case No ARB/01/12, Award (14 July 2006) 432.

182 Occidental Petroleum Corporation and Occidental Exploration and Production Company v The Republic of Ecuador, ICSID Case No ARB/06/11, Award (5 October 2012).

183 ibid para 416.

184 See Técnicas Medioambientales Tecmed, S.A. v The United Mexican States, ICSID Case No ARB (AF)/00/2; Azurix Corp. v The Argentine Republic, ICSID Case No ARB/01/12; Mohamed Abdulmohsen Al-Kharafi & Sons Co. v Libya and others, Unified Agreement for the Investment of Arab Capital in the Arab States (Cairo 22 March 2013).

185 See Yukos Universal Limited (Isle of Man) v The Russian Federation, UNCITRAL, PCA (18 July 2014) paras 1592, 1596–1598, 1633 and 1637.

186 Lao Holdings v The Lao People's Democratic Republic, ICSID Case No ARB (AF)/12/6, Ruling on Motion to Amend the Provisional Measures Order (30 May 2014) para 3.

187 Hesham T. M. Al Warraq v Republic of Indonesia, UNCITRAL, Final Award (15 December 2014) para 669. (‘It is a ‘‘cardinal principle’’ that the necessary parties to the counterclaim must be the same as the parties to the primary claim, and while this might be formally so in the present case there are many other entities that are either primarily or jointly responsible for the alleged frauds’).

188 Hamester v Ghana, ICSID Case No ARB/07/24, Award (18 June 2010) para 356 see also, Kryvoi (n 157) 236–239.

189 See European Commission Staff Working Document, ‘Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement’ (Brussels 13 January 2015) <http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153044.pdf>.

190 S Hindelang and Y Kryvoi, Consolidating the IIA network, UNCTAD Annual High-Level IIA Conference: Phase II of IIA Reform (10 October 2017). <http://investmentpolicyhub.unctad.org/Upload/Documents/BoS%203_agenda%20and%20report%20back.pdf> 8.

191 See discussion of obligations of States in Section IV.

192 For example, none of the three arbitrators who awarded $50 billion against Russia were Russian-qualified or spoke the Russian language.

193 United Kingdom Bribery Act 2010, <https://www.legislation.gov.uk/ukpga/2010/23/contents>.

194 Since its adoption, several British companies and individuals were successfully prosecuted for bribery or corruption overseas. (The UK House of Lords and House of Commons Joint Committee on Human Rights, ‘Human Rights and Business 2017: Promoting Responsibility and Ensuring Accountability (29 March 2017) <https://www.publications.parliament.uk/pa/jt201617/jtselect/jtrights/443/443.pdf> 57.)

195 Alldridge, P, ‘The UK. Bribery Act: The Caffeinated Younger Sibling of the FCPA’ (2013) 73 OhioStLJ 1181, 1202.

196 ibid section 7(2).

197 Ministry of Justice UK, ‘Bribery Act 2010: Guidance to Help Commercial Organisations Prevent Bribery’. The official guidance on the adequate procedures defence within the UK's Bribery Act includes engagement by senior management, risk assessment procedures, due diligence, communication and training as well as monitoring and review of existing procedures. See Guidance at 23, 25, 27, 29 and 31.

198 United Nations Conference on Trade and Development, ‘Phase 2 of IIA Reform: Modernizing the Existing Stock of Old-Generation Treaties’ (2017), IIA Issues Note, <http://unctad.org/en/PublicationsLibrary/diaepcb2017d3_en.pdf>, which emphasized that referencing global standards is an important part of reforming international investment agreements.

The author wishes to thank Andrea Bjorklund, Jean Ho and Noah Robins for their comments on earlier versions of the paper as well as Anna Lanshakova, Caroline Balme and Anna Khalfaoui for their excellent research assistance as well as participants of the Twenty Eighth ITF Public Conference “Economic Crime and International Investment Law” for stimulating discussions.

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